Yes, Health Care is a Right -- An Individual Right

Many moons ago, I served a term as chairman of the Conservative Party of the Yale Political Union, a parliamentary debating society. On March 26, the Union invited me back to keynote a debate on the topic, “Resolved, That Health Care is a Right.” What follows is an edited excerpt of my remarks, in which I argue that health care is indeed a right—but not in the way that most progressives think.

Thank you, Madame President.

The reason I’m here is to explain to the members of this House why health care is, indeed, a right. Let me start by telling the story of Deamonte Driver.

Deamonte lived on the wrong side of the tracks, in Prince George’s County, Maryland, outside of Washington, D.C. He was raised by a single mother. He spent his childhood in and out of homeless shelters. He was a black kid on welfare.

Deamonte died at age twelve. But Deamonte died, not in a drive-by shooting, or in a drug deal gone bad. Deamonte died of a toothache.

In January 2007, Deamonte told his mother, Alyce, that he had a headache. She took him to the hospital, where he was diagnosed with a severe dental abscess and given some medication. But the next day, his condition worsened. It turned out that the infection from his tooth had spread to his brain. He was taken to the hospital again and underwent emergency surgery. After a second surgery, he got better for a while, but then began to have seizures. Several weeks later, Deamonte was dead.

Of course, that was in the old, barbaric America, the one before the enactment of Patient Protection and Affordable Care Act. After that law is fully implemented, nearly every American will have health insurance, and stories like Deamonte’s will be a thing of the past.

Except that Deamonte Driver died not because he was uninsured. Indeed, Deamonte Driver died because he was insured—by the government. Deamonte, it turns out, was on Medicaid, America’s government-run health care program for the poor.

Although Deamonte was insured, he never received routine dental care. It turns out that only 16 percent of Maryland dentists accept Medicaid patients. Fewer than one-sixth of Maryland kids on Medicaid have ever had a cavity filled. Deamonte’s younger brother, DaShawn, had six rotted teeth, but it took dozens of calls before DaShawn could find one dentist who would see him. When the dentist concluded that DaShawn’s teeth were beyond repair, and required extraction, it took another several months to find an oral surgeon who would see him.

The reason why so few doctors accept Medicaid insurance is that Medicaid, in many states, pays doctors far less than it costs those doctors to care for Medicaid patients. Here in Connecticut, Medicaid pays 63 cents for every dollar that a private insurer pays a doctor to treat someone. In New Jersey, Medicaid pays only 33 cents. In New York and Rhode Island, it’s 29 cents. Doctors here face the impossible choice of treating these indigent patients, and bankrupting their practices, or not treating them at all.

You’d think that many mothers in Alyce’s position would find a way around this problem, that she could offer to supplement Medicaid’s penurious fees in order to gain access to a better dentist for her two sons. But that would be illegal. For those enrolled in government-run health insurance, it is illegal to try to gain better access to doctors and dentists by offering to make up the difference between what health care costs, and what the government pays.

That basic right—the right of a woman and her doctor to freely exchange money for a needed medical service—is one that 90 million Americans have been denied by their government.

Forcible enrollment in government health care

Let me tell another story, the story of Brian Hall, of Catlett, Virginia. Brian is a 69-year-old retiree. Brian did what we’d want all retirees to do: he saved for his own health care.

Brian’s office job allowed him to stay on private insurance after he retired. Brian’s health coverage included a high-deductible insurance plan that would take care of him if he got hit by a bus, or fell down the stairs, or suffered from a stroke. It also included a health savings account, to which Brian made annual deposits of about $4,000 a year.

Brian collected interest on that savings account, and could use those savings to pay for routine health expenses. Unlike Deamonte Driver, Brian could use his health savings account to gain access to just about any doctor he wanted, because he was paying cash. There was only one condition: Brian could only continue to use his health savings account, and his high-deductible insurance coverage, if he did not enroll in Medicare.

Brian was okay with that. He had saved enough over the course of his life that he preferred the plan he was on, rather than a Medicare program that was increasingly facing the same problems as Medicaid. But on January 3, 2009, when Brian turned 65, he received a phone call from the Social Security Administration, informing him that he had no choice but to enroll in Medicare, and that he could not withdraw from the program. If Brian insisted on withdrawing from Medicare, the agent told him, he would forfeit his right to his monthly Social Security benefit, a benefit that he had paid for with every paycheck he’d ever received.

Now, think about that for a moment.

Brian Hall is telling the government that he doesn’t want to take advantage of a government program. He’s saying, “take this taxpayer money and spend it on someone else. I’m happy to continue to pay into my private insurance plan and my private health savings account instead.” And the government responds by telling him that he has no choice but to enroll in Medicare and shut down his health savings account. If he doesn’t do what the government has told him to do, the Social Security Administration will confiscate his pension, even though his pension has no financial connection to the Medicare program.

Brian did something that Alyce Driver couldn’t afford to do. He sued. In court, Brian argued that forced participation in Medicare violated his rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution.

But Hall lost the case, in district court. He appealed his case to the U.S. Court of Appeals for the District of Columbia, where he lost again, in a 2 to 1 decision. He then appealed to the Supreme Court of the United States. But the Supremes, in their infinite wisdom, refused to hear the case. “We understand plantiffs’ frustration,” wrote the majority in the Court of Appeals opinion. But “plaintiffs’ position is inconsistent with the statutory text.”

In other words, that basic right—the right of a retiree to turn down a federal program, and pay for the health insurance plan of his choice, is one that every retired American has been denied by his government.

Infringing the rights of young people

It’s not just the poor and the elderly whose rights to health care have been infringed by the government. It’s also the young.

The Affordable Care Act contains a provision called “community rating.” It requires that insurers charge their costliest customers a maximum of three times what they charge their least-costly customers.

The problem is this: the average 64-year-old consumes about six times as much health care as the average 18-year-old. So the economic consequence of community rating, in the vast majority of U.S. states, is that many young people will see their premiums rise by more than 100 percent, so that some older individuals will enjoy modest discounts of 10 percent on their premiums.

This provision was added to Obamacare at the behest of the AARP, the famous seniors’ lobby. Our new health law cuts Medicare by $716 billion over the next ten years, and Democrats needed AARP’s support in order to pass the bill. So they added community rating: in effect, a massive transfer of wealth from the young to the old.

And here’s the kicker: thanks to Obamacare’s individual mandate, young people are no longer allowed to opt out of the system. They must pay these drastically inflated rates for health insurance, even if they never go to the doctor. The average 20-year-old consumes about $700 a year in health care, but will be forced to pay $4,000 a year, or more, for health insurance.

You see, health care is a right, in the same way that liberty is a right. And that liberty—to freely seek the care we need, to pay for it in a way that is mutually convenient for us and our doctors, is one that our government is gradually taking out of our hands.

Positive rights vs. negative rights

Now, I’m not going to drone on tonight about Locke and Bastiat and Nozick and Rawls, but I do want to address the difference between negative rights and positive rights. I know that those on the left side of this House do not necessarily accept that there is a meaningful difference between negative and positive rights. So let’s talk about the progressive conception that we all have a positive right to health care, care largely paid for by other people.

It’s a great applause line, isn’t it, to say that “health care is a universal human right.”

But after the applause has died down, we’re left with the question that the left rarely takes time to answer: what is health care?

Let’s say there’s a new treatment for terminal prostate cancer, one that extends your life, on average, by two months. The treatment costs one million dollars per patient. Does every American have a right to that treatment? Is two months of life worth a million dollars?

What if I smoke two packs a day, and I come down with chronic obstructive pulmonary disease, a costly chronic condition. Do I have a right to the money of other people, in order to care for a disease that I, in all likelihood, brought upon myself?

A progressive might respond that we need to provide basic health care to everyone, so that no one is left dying on the street after getting hit by a bus. But we already provide “free” emergency care to every American. So what else counts as basic health care? Is Viagra health care? Is all health care a right, or just some? And who decides? These are the questions that no applause line can adequately answer.

In Great Britain, the moral logic of the progressive right to health care is carried to its conclusion. In Britain, a bureaucracy called the National Institute for Health and Clinical Excellence, or NICE, has determined that a new treatment that extends life by something called a “quality-adjusted life year” is only worth paying for if it costs less than £20-30,000, or about $30-$45,000. This formula leads NICE to make, from time to time, some interesting decisions.

In 2005, Genentech, the pioneering biotechnology company, announced impressive clinical trial results for a new drug called Lucentis, that treated the leading cause of blindness in the elderly, a disease called age-related macular degeneration, or AMD. Genentech sought to charge £2,000 a month for Lucentis, amounting to £28,000 for a 14-month course of treatment. NICE, however, thought this too expensive, and decided to only recommend payment for Lucentis if a patient was already blind in one eye. NICE’s logic being that a person who has two eyes, and loses one, is not that badly off; whereas a person who has one eye, and loses that one, is completely blind, and that’s no good.

Literally, England has become the land of the blind, in which the one-eyed man is king.

The strongest progressive argument

But the progressive side has better, stronger arguments that I will make on its behalf.

Let’s take the example of a young, pregnant mother, who has just learned that the baby in her womb has Down Syndrome. She is faced with the terrible choice of knowing that if she carries her pregnancy to term, it will cost her a fortune in money, time, and effort to care for her new child. She has every economic incentive to undergo an abortion, even if she doesn’t want one, even if she is pro-life.

There are other children born with disease and disability, like cystic fibrosis or juvenile diabetes. Unlike our chronic smoker, who has brought about his own health problems, these children face severe disadvantages in life, through no fault of their own. These children—and the many adults who endure similar misfortune—are worthy of our attention, and our charity.

By the classical liberal understanding of negative rights, that mother who bears a child with Down Syndrome has no right to my financial support. But surely, in the wealthiest country in the history of the world, we can afford to pool our resources to care for those who truly need our help. I, for one, would be glad to pay a portion of my earnings to fund high-quality health care for the truly needy.

But that is not what we do in America. We massively subsidize health care for wealthy seniors, through Medicare, and for wealthy workers, through a provision of the tax code called the employer tax exclusion. Those two programs alone cost us over $1 trillion a year, and do much to make American health care absurdly expensive. They also make it much harder to fund health care for the poor and the uninsured, by starving the government of resources it could direct to that purpose.

Did you know that in America—this alleged bastion of the free-market—the government spends more per capita on health care than all but three countries in the world? In 2010, U.S. public entities spent $3,967 per person on health care. That’s far more than Germany, Canada, France, Britain, and all of the other countries we conservatives normally think of as socialist dystopias.

This point is so compelling that it has become a standard talking point on the left. “Not only would a single-payer system provide health care to everyone,” they say, “but it would also reduce the deficit.” And they’re right.

But what progressives neglect to point out is that, while every developed country in the world other than ours has universal health care, some of those countries achieve universal coverage using market-oriented methods that emphasize personal choice and responsibility.

Singapore spends one-seventh of what we spend on health care, and one-quarter of what Europeans do. And yet Singapore has managed to cover everyone, with health outcomes that are as good or better than the rest of the world. They’ve done it through a system of universal health savings accounts, in which every Singaporean saves for his own routine health expenses, while gaining insurance coverage for catastrophic events.

Now, Singapore’s political system is hardly the model of freedom. But its health care system teaches us much about how affordable it can be to provide health care to everyone, if we do it the right way. We would be running massive surpluses, instead of deficits, if we had a health-care system like Singapore’s.

So, let me leave the House with this thought. Some of us believe that health care is a negative right: that it’s the government’s obligation to maximize the degree to which we have freedom to seek the health care of our choosing. On the other hand, some of us believe that health care is a positive right: that the government has every prerogative to appropriate our income, for the purpose of providing some sort of health care to everyone.

The progressive conception of health care as a positive right misses something important: that we could provide better, and more affordable, coverage for everyone if we understood the degree to which classical liberal principles, like choice and competition and voluntarism, can achieve a superior form of universal health care.

The libertarian conception of health care as a negative right, however, also misses something important: the degree to which it is a worthy thing for us to pool our resources in order to support those who, through no fault of their own, find themselves with disability or disease.

As two commentators recently put it, “equality of opportunity is not a natural state; it is a social achievement, for which government shares some responsibility. The proper reaction to egalitarianism is not indifference. It is the promotion of a fluid society in which aspiration is honored and rewarded.”

A child with Down Syndrome may not have the right to my money. But we are a better community, and a better country, if we give it to him anyway.

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It’s interesting that you related the story of Driver but didn’t also relate the improvements to the system that have occurred since. According to the Washington Post: “Fast forward to 2010, the most recent year for which Pew has released dental-care data, and almost 42 percent of Medicaid-enrolled children in Maryland were getting dental treatment. Last year, Maryland became one of only five states that Pew awarded an “A” for reimbursement of dental fees accrued when treating Medicaid patients.”

And it is indeed a shame that Driver had to pass away for these improvements to be made. But Medicaid’s existence gave that child a chance. Private insurance wasn’t an affordable option for that family regardless how you would like to spin the care he later received.

Did it? The article states “ Although Deamonte was insured, he never received routine dental care.”

In what universe is coverage that still does not enable one to access routine treatment, superior to no coverage at all?

You mention a Washington Post report that Pew Foundation is apparently pleased that by 2010 “almost 42 percent of Medicaid-enrolled children in Maryland were getting dental treatment.”

In other words John, they’re saying 6 out of 10 children still do not have access to routine dental care.

With respect, I suggest that only in a government program would coverage of 16% not have been considered shameful to begin with; and that only in a government program would improvement to only 42% after 3 years be cited as something to feel good about.

This is at best an ill-researched article that misrepresents Libertarians.

Libertarians say people have a right to live in Libertarian eco-communities which provide healthcare, making mincemeat of the positive/negative rights fallacy. Why isn’t Roy calling for legalization!

Mr. Roy–GET EDUCATED! Thanks for the article, but for info on people using voluntary Libertarian tools on similar and other issues worldwide, please see the non-partisan Libertarian International Organization @ http://www.Libertarian-International.org ….

Fantastic article outlining the pitfalls of both sides of the argument regarding healthcare. As an office manager for a health provider – we do not accept Medicaid or Medicare – because they do not even pay enough to cover our expense to facilitate those patients. We are not a non-profit organization, even if we were, you cannot operate at a loss. Government sponsored healthcare is absurd, and worse than the blood-sucking insurance companies that have write-offs ranging 25-35% if not higher…At least the insurance companies pay enough to cover operating costs.

A well formulated article Mr. Roy with many points I agree with. There are better ways than Obamacare to improve outcomes and lower costs without giving away the clinic.

Your comment on ” . . .classical liberal principles, like choice and competition . . .” has left me befuddled. I always thought those were conservative principles, albeit with some limitations. To achieve the desired results, affordable healthcare with excellent results we’ve got to change the whole healthcare business model, whether it’s a government takeover or a much improved private practice system. The monopolies have to go.

Just like the Constitution says, you have a right to liberty. Not a right to health care.

A right to liberty as it pertains to health care is just like the author states: to freely seek the care you need and to pay for it in a way that is mutually convenient for you and your doctors. Notice how governments never imposes on natural rights. They merely coerce people into giving up their rights in exchange for potential entitlements or in exchange for a feeling that they’re part of the community.

Thus, our government is gradually coercing us to believe that health care is now a mandatory social duty that we must pay for as good citizens, but still cleverly leaves an ‘opt out’ clause so that we can refuse to buy insurance. People are still free to go to a hospital and independently pre-pay for services. People are still free to assume the risk of going without insurance. People are free to seek doctors who practice independently of third party cost-cutting guidelines as long as they’re willing to foot the bill independently. But these freedoms are concealed.